Citation Nr: 1033907
Decision Date: 09/10/10 Archive Date: 09/21/10
DOCKET NO. 06-10 071 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Entitlement to service connection for residuals of head
injury.
2. Entitlement to service connection for depression, claimed as
secondary to head injury.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
L. Cramp, Counsel
INTRODUCTION
Appellant (the Veteran) had active service from December 1986 to
November 1989.
This appeal comes before the Board of Veterans' Appeals (Board)
from a February 2005 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Seattle,
Washington.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Board finds that significant evidence was not addressed in
the medical opinions obtained in this case, and that a remand for
evidentiary development is necessary.
The RO requested two medical opinions in this case. The opinion
request does not specify which records were provided to the
examiners, but does specify that those records confirm the
Veteran's involvement in a motor vehicle accident in 1988, but
that clinical records from this time and subsequent military
treatment reports do not appear to demonstrate loss of
consciousness or common signs of a traumatic brain injury.
The report of VA mental examination in November 2008 includes a
review of certain service treatment records. The examiner noted
a record dated August 11, 1988, in which the Veteran described a
car accident early that morning, and denied loss of
consciousness. The November 2008 examiner diagnosed major
depressive disorder, dysthymia, and cognitive impairment NOS.
The examiner concluded that he could not state with certainty
whether the claimant suffered traumatic brain injury during
service, or whether current psychiatric cognitive impairment is
related to the in service car accident in 1988 without resorting
to mere speculation. The reason provided is that the record
dated August 11, 1988, the day of the accident, stated that the
claimant denied loss consciousness and was alert, and that,
although she claims that she sustained a closed head injury,
"there is nothing in the reviewed records that could support a
traumatic brain injury from that in service accident."
However, the examiner failed to discuss or even acknowledge
several other medical reports recorded on the same date as the
August 11, 1988 report. An August 11, 1988 DA Form 3888-1
(medical record) reveals that the Veteran was a passenger in a
head-on collision, and that she "experienced LOC, injury to top
of head, right side." The Veteran reported that she was "sore
all over." Neurological evaluation revealed that her pupils
were sluggish, and that her right upper and lower extremities
were weaker than the left. She was found to be alert and
oriented x 3. The Glasgow (scale for evaluating coma) rating was
15. She complained of her right leg "not wanting to move
right."
In addition, the August 11, 1988 ER report revealed complaint of
pain in right hip area and on top of head, with loss of
consciousness per patient. However, the driver reported that the
Veteran was awake but hysterical immediately after the accident.
Also, an August 11, 1988 nursing note at 0135 reveals complaint
of pain to top of head and down neck. Pupils were equal and
reactive but slow. She had decreased strength in the right hand
and right foot/leg. At 0415, she stated "I hurt all over." At
1400, it was noted that the initially weaker lower and upper
extremities were now within normal limits.
While it is unclear whether the examiner was provided all of the
service treatment records, in any event, he did not discuss
evidence which is clearly pertinent to his conclusion that
"there is nothing in the reviewed records that could support a
traumatic brain injury."
Further, the examiner stated that there was no objective medical
evidence from 1989 to 2003 that she suffered cognitive decline
subsequent to the accident. However, the claims file contains a
private psychiatric evaluation dated August 23, 1999, which
reveals findings of considerable problems with concentration and
memory, and a diagnosis of major depressive disorder.
The Board acknowledges that the omitted records are conflicting
and do not clearly establish a loss of consciousness, or a
significant brain injury. The examiner could reasonably have
concluded that the clinical findings are not indicative of loss
of consciousness or significant brain injury. However, this
point is at least debatable. Notably, an August 2004 psychology
progress report notes that the Veteran's report of history and
symptoms is "highly consistent with that of a severe closed head
injury." In any event, the omitted records are clearly
pertinent, and the examiner's failure to discuss or acknowledge
them renders the report inadequate.
Once VA undertakes the effort to provide an examination when
developing a service-connection claim, even if not statutorily
obligated to do so, VA must provide an adequate one or, at a
minimum, notify the claimant why one will not or cannot be
provided. Barr v. Nicholson, 21 Vet. App. 303 (2007).
If the examination report does not contain sufficient detail, it
is incumbent upon the rating board to return the report as
inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2009).
Similarly, in the December 2008 examination report, for traumatic
brain injury residuals, the examiner noted a report dated August
11, 1988, but stated that "[t]here is no mention of loss of
consciousness," and "[n]o mention of any neurological
deficit," and concluded that "there is no medical record
showing the [V]eteran had traumatic brain injury during the
service period."
Given the examiner's statements that there is no mention of loss
of consciousness and no mention of any neurological deficit, the
Board is left with the conclusion that, either the December 2008
examiner was not provided with all pertinent service records, or
that he did not review them. In either event, the report is
inadequate.
Finally, the Board notes that a March 2004 psychiatry care note
includes the observation that the Veteran "may have some PTSD
from the MVA." This possibility should also be addressed.
Accordingly, the case is REMANDED for the following action:
1. Afford the Veteran a VA examination to
determine the nature and etiology of any
current psychiatric disorder or other
residuals of head injury, to include
cognitive impairment. The entire claims
file must be made available to and
reviewed by the examiner. Any indicated
studies should be performed.
Based upon the examination results and the
review of the claims file, the examiner
should identify the appropriate diagnoses,
and, for each, provide an opinion as to
whether there is a 50 percent or better
probability that any identified disorder is
related to service.
The supporting rationale for all opinions
expressed must also be provided.
2. Readjudicate the remanded claims. If
either benefit sought on appeal is not
granted to the Veteran's satisfaction, she
and her representative should be provided a
supplemental statement of the case and an
appropriate period of time for response. The
case should then be returned to the Board for
further consideration, if otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).